Merriex v. State, BR-417

• Decision Date: 01 March 1988
• Docket Number: No. BR-417,BR-417
• Citation: 13 Fla. L. Weekly 548,521 So.2d 249
• Parties: 13 Fla. L. Weekly 548 Richard MERRIEX, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 249

521 So.2d 249

13 Fla. L. Weekly 548

Richard MERRIEX, Appellant, v. STATE of Florida, Appellee.

No. BR-417.

District Court of Appeal of Florida,

First District.

March 1, 1988.

Rehearing Denied April 1, 1988.

Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This cause is before us on appeal of appellant's conviction for selling crack cocaine. Appellant sold the drug to a confidential informant in a controlled street buy on July 8, 1986. Originally, he was charged with both possession and sale. Pursuant to a plea agreement in October 1986, the State dropped the possession charge in exchange for a guilty plea to the sale count. The day after appellant signed the plea agreement, he was arrested in Pinellas County on possession of cocaine charges. That case, however, was disposed of in November 1986. ¹ Appellant was not adjudicated guilty for the July 1986 sale until January 1987. In other words, appellant was arrested and convicted of a similar offense to that for which he was charged sub judice while he was out on bond for, and had pled guilty to, the offense sub judice.

In calculating appellant's scoresheet, the trial court did not score the Pinellas County conviction as a prior offense, although it had been disposed of by the time of sentencing in this case. Instead, the trial court used the Pinellas County conviction as a ground for departure. Appellant's scoresheet totaled 66 points, 76 being necessary to imprison him under the guidelines. If the court had scored the Pinellas County offense, appellant would have had 72 points, still insufficient to qualify him for state prison. The trial court's written reasons for departure were:

(1) Richard Merriex, while released on bond in the above cause, committed the offense of possession of cocaine, for which he was placed on probation prior to sentencing in the instant case.

(2) Richard Merriex, by committing a felony offense similar to the offense for which he is to be sentenced in the above case, while on bond in the above case, has demonstrated that he is an unfit candidate for probation and further demonstrated that he should be incarcerated in the Department of Corrections for the crime for which he stands convicted.

The contention on appeal is that the trial court should have scored the Pinellas County conviction rather than used it to depart. Rule 3.701(d)(5)(a), Florida Rules of Criminal Procedure, defines "prior record," for scoresheet purposes, as "any past criminal conduct on the part of the offender, resulting in conviction, prior to the commission of the primary offense." By definition, appellant's committing a new possession offense after the instant offense is not "past criminal conduct." It is subsequent criminal conduct, as the able trial judge recognized, and cannot be scored under "prior record." This principle was recognized in Safford v. State, 488 So.2d 141, 142 (Fla. 5th DCA 1986), and Frank v. State, 490 So.2d 190, 192 n. 1 (Fla. 2d DCA 1986). We agree with the analysis in Smith v. State, 518 So.2d 1336 (Fla. 5th DCA 1987), detailing the basis for distinguishing cases where the challenged offense occurred prior to the primary one at sentencing, from cases such as this one, where the crime occurred afterwards.

Since the Pinellas County offense could not be scored, it was proper to use it as a basis for departure. It is settled law that unscored but valid convictions can be used as grounds for departure. This is particularly so where the rules themselves do not provide a means of scoring an otherwise valid conviction. Davis v. State, 493 So.2d 82, 83 (Fla. 1st DCA 1986). See also Weems v. State, 469 So.2d 128 (Fla.1985); Brooks v. State, 505 So.2d 442 (Fla. 1st DCA 1986). Accordingly, appellant's conviction and sentence are AFFIRMED.

BOOTH and WIGGINTON, JJ., concur.

ZEHMER, J., specially concurs with written opinion.

ZEHMER, Judge (concurring).

The state's brief in this case agrees with appellant that "under the applicable rule the conviction in Pinellas County should have been scored as a prior offense rather than used as a reason for upward departure in sentencing" without any discussion of the applicable law. Yet the...